Opinion
NO. 03-14-00093-CR
02-09-2016
Todd Schannen Pearson, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NO. 03-614-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Todd Schannen Pearson pleaded guilty to the offense of possession of child pornography and was placed on ten years, deferred adjudication community supervision commencing on December 2, 2004. See Tex. Penal Code § 43.26. In February 2014, the trial court revoked appellant's community supervision, adjudged him guilty, and sentenced him to four years in prison. Appellant challenges the sufficiency of the evidence to support the trial court's finding that he violated the terms of community supervision by committing the offense of criminal trespass. See id. § 30.05(a). Because we conclude that the evidence supports this finding, we affirm the trial court's judgment adjudicating guilt.
BACKGROUND
Appellant received deferred adjudication community supervision after he pleaded guilty to possession of child pornography, and one of the conditions of community supervision limited his contact with minor children seventeen years of age or younger. In July 2013, the State filed a motion to adjudicate, alleging multiple violations of appellant's conditions of supervision primarily stemming from appellant's alleged improper contact with a minor, C.W. C.W. had made an outcry of an alleged sexual encounter with appellant.
To protect her identity, we refer to the claimant only by her initials.
On July 23, 2013, the trial court signed an order for appellant's arrest. The following morning, C.W. and her brother were at their mother's residence. While the brother was laying in bed, he "heard the door knob." The brother "got up" and found a man in the living room who the brother later identified as appellant. The man asked the brother if C.W. was there, and the brother left the living room to wake C.W. up. When the brother returned to the living room, the man said "Sorry to startle you," left the residence, and walked away. The brother, who did not know appellant and was unaware of his sister's allegations at the time, contacted his mother and provided her with a physical description of the man, including his attire, age, height, and "kind of stocky build." Based on this description, the mother sent the brother a photograph of appellant by text message and asked him whether appellant was the man who had been in their residence. The brother answered "Yes." The brother also identified appellant as the man in the living room to the investigating detective from a photograph that was taken later on the day of the incident. Although the brother said that the man who was in the living room had a "goatee," appellant was "clean-shaven" in the photograph that the detective showed him.
The State thereafter filed an amended motion to adjudicate to include an allegation that appellant committed criminal trespass. The witnesses at the adjudication hearing included C.W., her brother and mother, the investigating detective, and appellant's wife and brother. Although the witnesses provided conflicting testimony as to appellant's whereabouts and his attire and facial hair on the morning of the alleged trespass, C.W.'s brother identified appellant as the trespasser in open court. The exhibits included photographs of appellant and his truck and traffic camera footage of a truck matching the general appearance of appellant's truck roughly halfway between the areas of C.W.'s mother's residence and appellant's residence that was taken around the time of the trespass incident.
After hearing the evidence, the trial court found the allegation that appellant violated the conditions of community supervision by committing the offense of criminal trespass to be true. The trial court revoked appellant's deferred adjudication community supervision, adjudicated him guilty of the offense of child pornography, and sentenced him to four years in prison. Appellant appeals the judgment adjudicating guilt.
ANALYSIS
Standard of Review
We review the decision to adjudicate guilt in the same manner as a community supervision revocation in which an adjudication of guilt was not deferred. Tex. Code Crim. Proc. art. 42.12, § 5(b); Leonard v. State, 385 S.W.3d 570, 572 n.1 (Tex. Crim. App. 2012). We review a trial court's decision to revoke community supervision for abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). An order revoking community supervision must be supported by a preponderance of the evidence. Cardona, 665 S.W.2d at 493. We consider the evidence presented at the hearing in the light most favorable to the trial court's finding. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). "When the State has failed to meet its burden of proof, the trial judge abuses his discretion in issuing an order to revoke probation." Cardona, 665 S.W.2d at 493-94.
Sufficiency of Evidence
For purposes of this appeal, a person commits the offense of criminal trespass if the person enters a building or habitation of another "without effective consent" and with "notice that the entry was forbidden." Tex. Penal Code § 30.05(a)(1); see id. § 30.01 (defining "building" to include "any enclosed structure intended for use or occupation as a habitation" and "habitation" to include "a structure . . . that is adapted for the overnight accommodation of persons"); Salazar v. State, 284 S.W.3d 874, 878 (Tex. Crim. App. 2009) (holding "that a habitation inherently provides notice that entry is forbidden" (emphasis in original)).
Appellant's challenge to the sufficiency of the evidence to support the trial court's finding that he committed the offense of criminal trespass is limited to the issue of the trespasser's identity. He argues that the only reliable evidence of identification was that another person entered the residence. Appellant focuses on testimony from the investigating detective about a neighbor who chose a different person from a photo array. He also argues that the identifications of appellant as the trespasser were "well-known to be unreliable," focusing on the evidence that C.W.'s mother had already sent a photograph of appellant to C.W.'s brother by text message before the brother identified him from a photograph that the detective showed him. Appellant further challenges the value of the traffic camera footage showing a truck matching the general appearance of appellant's truck in a location between the areas of his residence and the residence of the alleged trespass.
To support his arguments, appellant cites factors set out in Neil v. Biggers, 409 U.S. 188, 199-200 (1972), for determining the reliability of eyewitness identification. The cited factors in that case, however, address reliability in the context of whether the eyewitness identification should be suppressed. See id.; see also Perry v. New Hampshire, 132 S. Ct. 716, 724-25 (2012) (discussing "'totality of the circumstances' approach" in Neil "to determine whether the Due Process Clause requires suppression of an eyewitness identification tainted by police arrangement"). Appellant does not argue that C.W.'s brother's identification should have been excluded but challenges the reliability and the trial court's weighing of this evidence. The trial court's duty, however, is "to judge the credibility of the witnesses and to determine whether the allegations in the motion to revoke are true or not." See Garrett, 619 S.W.2d at 174; see also Perry, 132 S. Ct. at 720 (noting that "reliability of relevant testimony typically falls within the province of the jury to determine" and that jury "will ultimately determine its worth").
In its weighing of the evidence, the trial court here could have found credible the detective's testimony that he did not place significance on the neighbor's initial identification of another person as the trespasser from a photo array because the neighbor "said that he was about 65 percent sure that was the person" and "just didn't seem very certain of his pick in the first place." Further, the detective testified that, after he showed the neighbor a photograph of appellant, the neighbor said "he was 100 percent certain" that appellant "was the suspect that he saw enter the house." The trial court also could have found that C.W.'s brother's in-court identification of appellant as the trespasser was credible and reliable. C.W.'s brother identified appellant during the hearing as the man who was in the living room of the residence, and the evidence, including the text message exchange between C.W.'s brother and mother, shows that C.W.'s brother provided a physical description of the man in the residence to his mother prior to her sending a photograph of appellant to him. That description generally was consistent with evidence of appellant's physical appearance on the morning of the incident, including testimony from appellant's brother that appellant had a "goatee" when he arrived at work on the morning of the incident. The detective also testified that, when the detective showed appellant's "clean-shaven" photograph to C.W.'s brother, "[h]e said he thought that that was the offender in the case but that it was more difficult to tell since [the man in the photograph] was clean-shaven, and he told [the detective] that the clothing was not the same." Although appellant's wife testified that appellant shaved before he left their residence on the morning of the incident and there was conflicting evidence of appellant's attire and whereabouts on that morning, it was for the trial court to weigh this conflicting evidence.
Considering the evidence in the light most favorable to the trial court's finding that appellant violated the terms of his community supervision by committing the subsequent offense of criminal trespass, we conclude that the preponderance of the evidence supports this finding. See Cardona, 665 S.W.2d at 493. Thus, we conclude that the trial court did not abuse its discretion by revoking appellant's deferred adjudication community supervision and adjudicating him guilty. We overrule appellant's sole issue.
CONCLUSION
Having overruled appellant's sole issue, we affirm the judgment adjudicating guilt.
/s/_________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Bourland Affirmed Filed: February 9, 2016 Do Not Publish